Legislative Scrutiny: (1) Criminal Justice and Courts Bill and (2) Deregulation Bill - Human Rights Joint Committee Contents

Conclusions and recommendations

Criminal Justice and Courts Bill

Information provided by the Department

1.  We welcome the usefulness of the Government's ECHR Memorandum, which is in accordance with our recommendations for best practice by Government Departments. (Paragraph 1.3)

2.  We welcome the Government's acknowledgment of the importance of the relevant international standards concerning the rights of children and, specifically, the rights of children within the youth justice system. However, there is no evidence to suggest that the relevant international standards, including even the relevant rights in the UNCRC itself, were considered by the Ministry of Justice prior to the publication of the Bill and its accompanying explanatory material, notwithstanding the commitment given by the Government in December 2010. We have commented adversely on this lack of prior analysis in a number of recent scrutiny Reports in relation to Bills with clear implications for the rights of children, and we regret that it is necessary to do so again. We intend to return at a later date to the question of whether the Government has made any progress towards implementing the commitment it gave in 2010 to always have due regard to the UNCRC when developing law and policy. (Paragraph 1.7)

Significant human rights issues

3.  It appears from the Government's response to our question that the Government's justification for increasing the maximum sentences for certain terrorism-related offences is not based on any proven inadequacy of the current sentencing powers in cases which have been prosecuted to date, but on the Government's view that "it is important to maintain a consistent and up-to-date sentencing regime for all offences on the statute book." We agree with that proposition, and we accept the Government's justification for increasing the maximum sentences for these serious terrorism-related offences, especially in view of the courts' discretion to impose a lower sentence remaining unaffected by the provisions. (Paragraph 1.14)

4.  We note, however, that the Government has not been very clear about what has created the inconsistency or led to the sentencing powers for these offences being out of date. If the Government's reforms to sentences for Indefinite Public Protection ("IPPs") have left sentencing powers for some offences less extensive than they were previously, the Government should be prepared to say so explicitly. Significant increases in maximum sentences require clear and transparent justifications. (Paragraph 1.15)

5.  The Government's reply has clarified what was meant in its ECHR Memorandum when it stated that the effect of the provisions in clauses 1-3 of the Bill may be to "compel" courts to make whole life orders in certain cases concerning these terrorism-related offences. The decision as to whether the seriousness of the offence is such as to warrant a whole life order is a decision for the court. The obligation to make such an order arises once such a determination has been made by the court. In other words, when the Government referred to the court being "compelled" to make a whole life order in certain cases, it was referring, not to mandatory whole life orders imposed by statute, but to the fact that, where a court decides for itself that the case is sufficiently serious to warrant such an order, the court has no choice but to make such an order. (Paragraph 1.19)

6.  In view of the legal uncertainty that remains about the availability of a review mechanism for whole life orders, notwithstanding the clarification provided by the Court of Appeal in McLoughlin, we have considered carefully what would be required in order to remove that uncertainty. In our view, for the review mechanism to be sufficiently certain, more specific details need to be provided about the mechanism, including the timetable on which such a review can be sought, the grounds on which it can be sought, who should conduct such a review, and the periodic availability of further such reviews after the first review. (Paragraph 1.26)

7.  The current Bill provides an opportunity for Parliament to remove any legal uncertainty by specifying the details of the review mechanism. In our view, providing the requisite legal certainty could be achieved relatively simply by an amendment of the existing statutory framework in s. 30 of the Crime (Sentences) Act 1997 to provide, for example, that a prisoner who is subject to a whole life order can, after 25 years in custody, apply to the Parole Board for a review of the continued justification for the whole life order; and the Parole Board, if it is satisfied that the prisoner has made such exceptional progress towards rehabilitation that the justification for a whole life order no longer exists, can substitute a determinate tariff. (Paragraph 1.29)

8.  The detailed safeguards in the Code of Practice will be crucial to ensuring that the processing of data gathered from electronic monitoring following release on licence is carried out in such a way that any interference with the right to respect for private life is necessary and proportionate to the legitimate aims pursued. It is therefore important that there is some opportunity for parliamentary scrutiny of the adequacy of those safeguards. We recommend that the Bill be amended to make the Code subject to some form of parliamentary procedure in order to ensure that Parliament has such an opportunity. (Paragraph 1.37)

9.  We welcome, as a human rights enhancing measure, the provision in the Bill to extend the current offence of possession of extreme pornography to include possession of pornographic images depicting rape and other non-consensual sexual penetration. We consider that the cultural harm of extreme pornography, as set out in the evidence provided to us by the Government and others, provides a strong justification for legislative action, and for the proportionate restriction of individual rights to private life (Article 8 ECHR) and freely to receive and impart information (Article 10 ECHR). (Paragraph 1.50)

10.  The international standards also include a number of other provisions and principles which are highly relevant to Part 2 of the Bill: for example, that the State should set up small open facilities where children can be tended to on an individual basis and so avoid the additional negative effects of deprivation of liberty; and that institutions should be decentralised to allow for children to continue having access to their families and their communities. We emphasise the importance of these international standards to Parliament's scrutiny of this part of the Bill. (Paragraph 1.53)

11.  We note that the Government does not appear to have carried out any equality impact assessments of the proposed secure colleges policy, and we recommend that such assessments should be carried out and made available to Parliament at the earliest opportunity, assessing in particular the impact on girls and younger children of detaining them in large mixed institutions holding up to 320 young people including older children up to the age of 18. (Paragraph 1.57)

12.  In our view, the Government's distinction between the provision in the Bill itself and the secure college rules which are yet to be made does not avoid the underlying human rights compatibility problem with the substance of the policy: it is clear from the reasoning of the Court of Appeal in the case of C v Secretary of State for Justice that it is incompatible with Articles 3 and 8 ECHR for any law, whether primary or secondary legislation, to authorise the use of force on children and young people for the purposes of good order and discipline. (Paragraph 1.66)

13.  In light of the human rights compatibility issues explained above, we recommend that the relevant provision in Schedule 4 of the Bill should be deleted, and the Bill should be amended to make explicit that secure college rules can only authorise the use of reasonable force on children as a last resort; only for the purposes of preventing harm to the child or others; and that only the minimum force necessary should be used. (Paragraph 1.68)

14.  We have considered the extent to which, in the absence of a means test at the point of imposition of the charge (as opposed to later at the stage of enforcement), the proposed criminal courts charge is likely to influence impecunious defendants' decisions about whether to plead guilty, whether to elect summary or jury trial, and whether to appeal against conviction or sentence. We have found it difficult to assess this risk in the absence of clear evidence about the impact of court charges in practice. We recommend that the Government monitor carefully the impact of the criminal courts charge on the right of defendants to a fair trial of the criminal charge against them, and make available to Parliament the results of that monitoring. In the meantime we ask that there be made available to Parliament any other evidence that already exists about the impact of other, existing, charges and fees on criminal defendants' decisions about plea, mode of trial and appeals. (Paragraph 1.72)

15.  We recognise that the Bill's provision of a new defence to the strict liability rule for contempt of court, where proceedings become active after matter has been published on the internet, is in principle an improvement on the position under the current law. Currently, publishers who make material continuously available are exposed to the risk of becoming liable for contempt of court where proceedings subsequently become active, unless they monitor their archives to see if any such material has become contemptuous in the light of subsequent proceedings. However, we are concerned about the lack of safeguards on the face of the Bill against the arbitrary or disproportionate exercise of the Attorney General's power to, in effect, require material to be taken down on pain of losing the new defence. For example, the Government says that the Attorney General will only issue such a notice where the high threshold statutory test of "substantial risk of serious prejudice" is satisfied, but this is not stated anywhere in the legislation itself. Nor is it clear from the Bill what role the "public interest" defence in s. 5 of the Contempt of Court Act 1981 should play in the Attorney General's decision whether or not to issue a notice. (Paragraph 1.75)

16.  The Government may intend to provide for such safeguards in the regulations which the Bill envisages will be made about the giving of an Attorney General's notice, and the information to be contained in the notice. We asked the Government whether it would make available a draft copy of those regulations during the passage of the Bill to enable Parliament to scrutinise fully the implications for freedom of expression. The Government replied that it does not expect to do so. To our surprise, it said "we do not view these arrangements as having any implications for freedom of expression." We disagree. The compatibility of the new Attorney General's notice procedure with the right to freedom of expression in Article 10 ECHR will depend to a large extent on the detailed provision to be contained in the proposed regulations and we cannot reach a view on that question without seeing them. We recommend that the Government publish a draft of the regulations at the earliest opportunity to enable such scrutiny to be carried out. (Paragraph 1.76)

Deregulation Bill

Significant human rights issues

17.  Applying the economic growth duty to the EHRC poses a significant risk to the EHRC's independence, for the reasons set out in the letter from the ICC to the Minister for Equalities, and therefore to its compliance with the Paris Principles and the Equal Treatment Directives as implemented by the Equality Act 2010. The Government is therefore risking the possibility of the EHRC's accredited "A" status being downgraded and of putting the UK in breach of its obligations under EU equality law. This could be easily avoided if the proposed new duty did not apply to the EHRC. However, it would appear that the Government still intends to apply the economic growth duty to the EHRC and to attempt to deal with concerns about independence in another way. (Paragraph 2.20)

18.  We endorse Baroness O'Neill's view. We are also conscious of the importance of the Commission's category A status for the Foreign and Commonwealth Office in terms, as Baroness O'Neill said, of British soft power. Unless the continuing discussions between the Government and the Commission satisfy the Commission that the growth duty will not in any way impact upon its independence, we recommend that this duty not be applied to the EHRC. (Paragraph 2.22)

19.  We recommend that the power of employment tribunals to make wider recommendations in discrimination cases should be retained. (Paragraph 2.29)

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Prepared 11 June 2014